CHIEF JUSTICE GUBBAY PUBLICLY REPRIMANDS HIGH

C O N F I D E N T I A L HARARE 000354 SIPDIS NSC FOR SENIOR AFRICA DIRECTOR GSMITH LONDON FOR CGURNEY PARIS FOR BWILLIAMS NAIROBI FOR PFLAUMER PASS USAID FOR A/AID RMCCALL, AA/AFR VDERRYCK, AND AFR/SA - CPALMA PASS USTR FOR ROSA WHITAKER CONFIDENTIAL PAGE 02 HARARE 00354 181611Z E.O. 12958: DECL 01/18/11 TAGS: PGOV PHUM PINS ZI SUBJECT: CHIEF JUSTICE GUBBAY PUBLICLY REPRIMANDS HIGH COURT JUDGE PRESIDENT CHIDYAUSIKU CLASSIFIED BY CHARGE D' AFFAIRES EARL M. IRVING FOR REASONS 1.5 (B/D). REFS: A. HARARE 00246, B. HARARE 00106 ¶1. (U) ON JANUARY 17, THE CHIEF JUSTICE OF THE SUPREME COURT, ANTHONY GUBBAY, PUBLICLY REPRIMANDED THE JUDGE PRESIDENT OF THE HIGH COURT, GODFREY CHIDYAUSIKU, FOR ATTACKING GUBBAY HIMSELF, THE SUPREME COURT, AND OTHER JUDGES OF THE HIGH COURT FOR RULING AGAINST THE GOVERNMENT OF ZIMBABWE (GOZ) ON THE ISSUE OF LAND. CHIDYAUSIKU ASSAILED THE SUPREME COURT CHIEF JUSTICE WHILE SPEAKING AT THE OPENING OF THE JUDICIAL YEAR IN THE BULAWAYO HIGH COURT ON JANUARY 8 (REF A). GUBBAY REJECTED CHIDYAUSIKU'S CONTENTION THAT THE COURTS HAVE NO BUSINESS RULING ON THE GOZ'S "FAST-TRACK" RESETTLEMENT PLAN BECAUSE IT IS A POLITICAL, NOT A LEGAL, ISSUE. "SUCH AN ATTITUDE," GUBBAY SAID, "CONFLICTS WITH THE RULE OF LAW AND HIS OATH OF OFFICE." GUBBAY ALSO DISMISSED A CONCERN EXPRESSED BY CHIDYAUSIKU THAT THE SUPREME COURT HAD OVERTURNED ONE OF HIS DECISIONS, POINTING OUT SIMPLY THAT EVEN A LAYMAN UNDERSTANDS THAT THE SUPREME COURT HAS THE AUTHORITY TO REVERSE THE RULINGS OF HIGH COURT JUDGES. ¶2. (U) GUBBAY'S STATEMENT FINISHED WITH THE DECLARATION CONFIDENTIAL PAGE 03 HARARE 00354 181611Z THAT "AFTER ANXIOUS CONSIDERATION, I AM OF THE VIEW THAT THE JUDGE PRESIDENT'S CONDUCT DOES NOT YET WARRANT...ADVICE TO HIS EXCELLENCY THE PRESIDENT, THAT HIS REMOVAL OUGHT TO BE INVESTIGATED. NONETHELESS IT IS DESERVING OF A SEVERE REPRIMAND." GUBBAY ADDED FURTHER THAT "IN THE TENSE SITUATION PREVAILING IN ZIMBABWE AT PRESENT, THE JUDGE PRESIDENT SHOULD AVOID MAKING INFLAMMATORY STATEMENTS." HE CONCLUDED WITH THE COMMENT THAT THE SUPREME COURT BENCH FULLY SUPPORTED THE ISSUANCE OF HIS STATEMENT. ¶3. (C) COMMENT: THIS WAS AN UNUSUAL PUBLIC EXCHANGE OF RHETORICAL VOLLEYS BETWEEN TWO SENIOR MEMBERS OF THE BENCH. GUBBAY'S COMMENTS REFLECT ANGER WITH CHIDYAUSIKU'S OUTRAGEOUS ATTACK ON THE LEGITIMATE ROLE OF THE COURTS, AND ARE, MORE GENERALLY, A RESPONSE TO THE INCREASING EXECUTIVE BRANCH CRITICISM OF THE JUDICIARY AND ITS INDEPENDENCE. CHIDYAUSIKU HAS MADE IT CLEAR THAT HE IS WILLING TO CARRY ZANU-PF'S WATER AND A NUMBER OF LEGAL OBSERVERS HAVE TOLD US MUGABE WANTS TO REPLACE GUBBAY WITH CHIDYAUSIKU WHEN THE FORMER RETIRES IN APRIL 2002. ONE PROMINENT JUDGE TOLD US CHIDYAUSIKU'S SPEECH WAS INTENDED AS A TRAP TO FORCE GUBBAY TO CALL FOR AN INVESTIGATION OF THE HIGH COURT JUDGE PRESIDENT. ACCORDING TO OUR CONTACT, SUCH A CALL COULD HAVE GIVEN PRESIDENT MUGABE A CONSTITUTIONAL PROVISION TO USE TO REPLACE GUBBAY NOW WITH CHIDYAUSIKU, IN THE NAME OF JUDICIAL HARMONY. GUBBAY AVOIDED THE TRAP BY REPRIMANDING CHIDYAUSIKU INSTEAD OF CALLING FOR AN INVESTIGATION. END COMMENT. CONFIDENTIAL PAGE 04 HARARE 00354 181611Z IRVING CONFIDENTIAL >